UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Transcription

1 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 DONALD SPECTER 0 STEVEN FAMA 0 PRISON LAW OFFICE Fifth Street Berkeley, California 0- Telephone: (0) 0- JON MICHAELSON 0 JEFFREY L. BORNSTEIN 0 LINDA L. USOZ MEGAN CESARE-EASTMAN K&L GATES LLP Embarcadero Center, Suite 0 San Francisco, California - Telephone: () -0 Attorneys for Plaintiffs RALPH COLEMAN, et al., v. Plaintiffs, EDMUND G. BROWN, Jr., et al., Defendants. UNITED STATES DISTRICT COURT MICHAEL W. BIEN 0 JANE E. KAHN ERNEST GALVAN 0 THOMAS NOLAN AARON J. FISCHER MARGOT MENDELSON KRISTA STONE-MANISTA 0 ROSEN BIEN GALVAN & GRUNFELD LLP Montgomery Street, Tenth Floor San Francisco, California 0- Telephone: () -0 CLAUDIA CENTER THE LEGAL AID SOCIETY EMPLOYMENT LAW CENTER 0 Montgomery Street, Suite 00 San Francisco, California 0- Telephone: () - EASTERN DISTRICT OF CALIFORNIA Case No. Civ S 0-0 LKK-JFM PLAINTIFFS EVIDENTIARY OBJECTIONS TO DEFENDANTS REPLY DECLARANTS AND MOTION TO STRIKE, AND RESPONSE TO DEFENDANTS OBJECTIONS Judge: Hon. Lawrence K. Karlton Date: March, Time: :0 p.m. Crtrm.:

2 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 TABLE OF CONTENTS Page TABLE OF ABBREVIATIONS... v INTRODUCTION... I. THIS COURT SHOULD STRIKE NEW EVIDENCE AND ARGUMENTS IMPROPERLY OFFERED BY DEFENDANTS IN THEIR REPLY... II. the court should decline to consider defendants improper and irrelevant introduction of evidence in their reply that concerns future plans or conditions or otherwise violates the rules of evidence... A. Evidence about Alleged Future Plans or Conditions Should Be Excluded as Irrelevant... B. Evidence that Violates Other Basic Rules of Evidence Should Be Excluded... III. EVIDENTIARY OBJECTIONS TO EVIDENCE... 0 A. Declaration of Tim Belavich, Docket No. ( Belavich Decl. )... 0 B. Declaration of Jacqueline Moore, Docket No. ( Moore Decl. )... C. Declaration of Diana Toche, Docket No. ( Toche Decl. )... D. Reply Declaration of Steve J. Martin, Docket No. ( Martin Decl. )... E. Declaration of Connie Gipson, Docket No. 0 ( Gipson Decl. )... F. Declaration of Robert Fischer, Docket No. ( Fischer Decl. )... G. Declaration of Brenda Cash, Docket No. ( Cash Decl. )... H. Declaration of Victor Jordan, Docket No. ( Jordan Decl. )... 0 I. Declaration of Katherine Hudson, Docket No. ( Hudson Decl. )... J. Declaration of Jonathan Harry, Docket No. ( Harry Decl. )... K. Declaration of Lori Williams, Docket No. ( Williams Decl. )... L. Declaration of Jeremy Colley, Docket No. ( Colley Decl. )... M. Declaration of Kim Holland, Docket No. ( Holland Decl. )... N. Declaration of Joe Lizarraga, Docket No. ( Lizarraga Decl. )... O. Declaration of James Telander, Docket No. 0 ( Telander Decl. )... P. Declaration of Randolf Grounds, Docket No. ( Grounds Decl. )... i

3 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 Q. Declaration of M. Schneider, Docket No. ( Schneider Decl. )... R. Declaration of Douglas Beatty, Docket No. 0 ( Beatty Decl. )... S. Declaration of M. Atchley, Docket No. ( Atchley Decl. )... T. Declaration of Tim Virga, Docket No. ( Virga Decl. )... U. Declaration of Shama Chaiken, Docket No. ( Chaiken Decl. )... V. Declaration of John Soto, Docket No. ( Soto Decl. )... W. Declaration of Christopher Cornell, Docket No. ( Cornell Decl. )... X. Declaration of Heather Greenwald, Docket No. ( Greenwald Decl. )... Y. Declaration of Daniel Paramo, Docket No. ( Paramo Decl. )... Z. Declaration of Kevin Chappell, Docket No. ( Chappell Decl. )... AA. Declaration of Ellen Bachman, Docket No. ( Bachman Decl. )... BB. Declaration of Charles DaSilva, Docket No. ( DaSilva Decl. )... CC. Declaration of Kathryn Radtkey-Gaither, Docket No. ( Radtkey- Gaither Decl. )... DD. Declaration of Katherine Warburton, Docket No. ( Warburton Decl. )... EE. Declaration of T. Felton, Docket No. ( Felton Decl. )... FF. Declaration of J. Keith, Docket No. ( Keith Decl. )... GG. Declaration of F. Igbinosa, Docket No. ( Igbinosa Decl. )... HH. Declaration of C. Shytle, Docket No. ( Shytle Decl. )... II. Declaration of J. Card, Docket No. ( Card Decl. )... JJ. Declaration of E. Force, Docket No. ( Force Decl. )... KK. Declaration of Rick Hill, Docket No. ( Hill Decl. )... LL. Declaration of Meg Cho, Docket No. ( Cho Decl. )... 0 MM. Declaration of Diane O Laughlin, Docket No. ( O Laughlin Decl. )... 0 NN. Declaration of K. Center, Docket No. ( Center Decl. )... 0 OO. Declaration of Robert McMahon, Docket No. ( McMahon Decl. )... 0 ii

4 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 PP. Declaration of Cheryl Paizis, Docket No. 0 ( Paizis Decl. )... 0 QQ. Declaration of J. Buckley, Docket No. 0 ( Buckley Decl. )... 0 RR. Declaration of G. Hoffman, Docket No. ( Hoffman Decl. )... 0 SS. Declaration of Kathleen Allison, Docket No. ( Allison Decl. )... 0 TT. Declaration of Patrick R. McKinney, Docket No. ( McKinney Decl. )... UU. Declaration of Eric Monthei, ( Monthei Decl. )... IV. RESPONSE TO DEFENDANTS EVIDENTIARY OBJECTIONS AND BASELESS ATTACKS ON PLAINTIFFS EXPERTS... A. Defendants Evidentiary Objections... B. Defendants Attacks on Plaintiffs Other Experts Are Baseless, Improper, and Ignore the Facts... CONCLUSION... iii

5 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 TABLE OF AUTHORITIES CASES Page Brown v. Plata, S. Ct. 0 ()... Coleman v. Wilson, F. Supp. (E.D. Cal. )... Daubert v. Merrell Dow Pharms., Inc., 0 U.S. ()... Gilmore v. California, F.d (th Cir. 00)... Graves v. Arpaio, F.d 0 (th Cir. 0)... L.H. v. Schwarzenegger, 0 U.S. Dist. LEXIS (E.D. Cal. Jan., 0)... Lancaster v. Tilton, No. C -00, 0 U.S. Dist. LEXIS (N.D. Cal. Dec., 0)..., Ontiveros v. Zamora, No. S-0- U.S. Dist. LEXIS (E.D. Cal. Jan., )... Provenz v. Miller, 0 F.d (th Cir. )... STATUTES U.S.C.... iv

6 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 ACA APP ASH or Atascadero ASP or Avenal ASU BCP CAL or Calipatria CCC CCCMS CCI CCPOA CCWF CDCR CDPH CEN or Centinela CIM CIW CMC CMF CMO COR or Corcoran CPR CRC CSH or Coalinga CTC CTF CVSP or Chuckwalla DAI DMH DOM DSH DOT DVI or Deuel EOP EOP ASU Hub euhr FOL or Folsom HDSP or High Desert ICF IDTT TABLE OF ABBREVIATIONS American Correctional Association Acute Psychiatric Program Atascadero State Hospital Avenal State Prison Administrative Segregation Unit Budget Change Proposal Calipatria State Prison California Correctional Center Correctional Clinical Case Manager System California Correctional Institution California Correctional Peace Officers Association Central California Women s Facility California Department of Corrections and Rehabilitation California Department of Public Health Centinela State Prison California Institute for Men California Institute for Women California Men s Colony California Medical Facility Chief Medical Officer California State Prison/Corcoran Cardiopulmonary Resuscitation California Rehabilitation Center Coalinga State Hospital Correctional Treatment Center California Training Facility/Soledad Chuckwalla Valley State Prison Division of Adult Institutions Department of Mental Health Department Operations Manual Department of State Hospitals Direct Observation Therapy Deuel Vocational Institute Enhanced Outpatient Program Enhanced Outpatient Program Administrative Segregation Unit electronic Unit Health Records Folsom State Prison High Desert State Prison Intermediate Care Facility Interdisciplinary Treatment Team v

7 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 ISP or Ironwood Ironwood State Prison KVSP or Kern Valley Kern Valley State Prison LAC or Lancaster California State Prison/Los Angeles County LPT Licensed Psychiatric Technician LVN Licensed Vocational Nurse LOB Lack of Bed MCSP or Mule Creek Mule Creek State Prison MHCB Mental Health Crisis Bed MHOHU Mental Health Outpatient Housing Unit MHSDS Mental Health Services Delivery System NKSP or North Kern North Kern State Prison OC oleoresin capsicum OHU Outpatient Housing Unit OIG Office of the Inspector General PBSP or Pelican Bay Pelican Bay State Prison PCP Primary Care Provider PLRA Prison Litigation Reform Act PSH or Patton Patton State Hospital PSU Psychiatric Services Unit PVSP Pleasant Valley State Prison R&R Reception and Receiving RC Reception Center RJD or Donovan Richard J. Donovan Correctional Facility RN Registered Nurse RVR Rules Violation Report SAC or Sacramento California State Prison/Sacramento SATF California Substance Abuse Treatment Facility (II) SCC or Sierra Sierra Conservation Center SHU Segregated Housing Unit SM Special Master in the Coleman case SNY Special Needs Yard SOL or Solano California State Prison/Solano SQ or San Quentin California State Prison/San Quentin SVPP Salinas Valley Psychiatric Program SVSP or Salinas Valley Salinas Valley State Prison TB Tuberculosis TTA Triage and Treatment Area TTM Therapeutic Treatment Module UHR Unit Health Records VSPW or Valley State Valley State Prison for Women VPP Vacaville Psychiatric Program WSP or Wasco Wasco State Prison ZZ Cell Makeshift Temporary Cells Outside of Clinic Areas vi

8 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 INTRODUCTION Defendants are seeking to use their Reply briefing to introduce evidence that they should have included with their Motion to Terminate, and that Plaintiffs should have had an opportunity to test through discovery. Defendants termination motion was a barebones project, supported only by sweepingly broad claims of constitutional compliance in declarations of high-level officials, and in cursory expert reports lacking any reference to specific evidence. Now, after the close of discovery, Defendants offer over 0 declarations, full of untested and unsupported factual claims. As detailed in the specific objections below, nearly all of these claims are inadmissible statements without personal knowledge. Almost all of the few statements grounded in person knowledge are admissions of ongoing failures to provide minimally adequate mental health care. Plaintiffs request that the Court () strike new evidence improperly filed on Reply by Defendants; and () exclude statements that are inadmissible under the Federal Rules of Evidence; and () disregard unsupported and baseless attacks on the opinions of Plaintiffs expert witnesses. See Parts I-III, infra. In Part IV, Plaintiffs provide their response to Defendants Evidentiary Objections (Docket No. ) and to the improper and scurrilous attacks on Plaintiffs experts that pervade Defendants Reply brief and Reply Declarations. I. THIS COURT SHOULD STRIKE NEW EVIDENCE AND ARGUMENTS IMPROPERLY OFFERED BY DEFENDANTS IN THEIR REPLY Defendants filed an astonishing witness declarations in support of their Reply, many of which improperly offer new evidence or assertions to buttress Defendants claim that California is currently providing constitutionally adequate mental health care in its prisons. Forty-nine of these declarants had not previously submitted evidence in connection with Defendants Motion to Terminate, and Plaintiffs did not have the

9 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 opportunity to depose them in the discovery phase of the termination proceeding. moving party is not permitted to offer new evidence or arguments in its reply. Graves v. Arpaio, F.d 0, 0 (th Cir. 0) ( [A]rguments raised for the first time in a reply brief are waived. ); Provenz v. Miller, 0 F.d, (th Cir. ) (court should not consider new evidence submitted in reply without affording non-moving party opportunity to respond); Clark v. State of California, F. Supp. d, n. (N.D. Cal. 0) ( Defendants have submitted new evidence [B]ecause Defendants have failed to explain why this evidence was not developed in a timely manner, and because consideration of this evidence at this stage would deprive Plaintiffs of the opportunity to cross-examine the relevant witness, this Court declines to consider it. ). The exclusion of new evidence in a reply brief applies to new evidence that could have been presented at the time of the original Motion. It also applies to new actions Defendants allege they have taken since filing their Motion that they contend have suddenly remedied longstanding constitutional violations. For example, Defendants cite memoranda dated March, and March, in support of their claim that they are undertaking appropriate suicide precautions, of which one has not yet been released to the field. Defs. Reply at :- & :-; Allison Decl. & Belavich Decl. (// memorandum regarding welfare checks, not yet released to field); Defs. Reply at :-, :-, :-: & :-; Allison Decl. (// memorandum regarding administrative segregation conditions); Defs. Reply at :- & :0-; Allison Decl. - & Belavich Decl. (// memorandum regarding policies for acute and intermediate care patients). If Defendants present evidence in the form of assertions about after-occurring actions or fixes they have allegedly taken in the three weeks since the close of discovery, Plaintiffs must have a corollary opportunity to test that Only six of Defendants declarants submitted declarations or reports in support of the original motion to terminate: Diana Toche, Tim Belavich, Jacqueline Moore, Steve Martin, Charles Scott, and Debbie Vorous. A

10 Case :0-cv-00-LKK-JFM Document Filed 0// Page 0 of [-] 0 evidence. This would lead to a never-ending cycle of discovery, which the strict time limits of the PLRA do not allow. See Lancaster v. Tilton, No. C -00, 0 U.S. Dist. LEXIS at * (N.D. Cal. Dec., 0) (rejecting plaintiffs proposal for additional discovery in termination proceedings because it would result in an endless process of updating and supplementing the record without any means to the end ). As the U.S. Supreme Court found in Brown v. Plata, [o]rderly trial management may require discovery deadlines that set a timeframe for evidence that may be presented to the court. S. Ct. 0, (); see also Clark, F. Supp. d at (finding that [t]he orderly presentation of evidence requires that parties prepare in advance of the hearing to present all relevant evidence and plaintiff would be prejudiced by accepting defendants new evidence where plaintiffs did not have the opportunity to depose or cross examine the individuals who presented the evidence). If the Court finds it necessary to consider this new evidence in order to adjudicate the termination motion, the Court must afford Plaintiffs an opportunity to file a sur-reply. See, e.g., Ontiveros v. Zamora, No. S-0- U.S. Dist. LEXIS at * (E.D. Cal. Jan., ); L.H. v. Schwarzenegger, 0 U.S. Dist. LEXIS at * n. (E.D. Cal. Jan., 0). However, because of the time limits imposed by the PLRA for ruling on a termination motion, and because, as explained in more detail in the next section, the relevant evidence for a termination motion is evidence about conditions existing as of the time Defendants filed the Motion, the better course in this case would be for the Court to exclude Defendants new evidence as improper, pursuant to clearly established Ninth Circuit law. The evidentiary objections identified below include new evidence and arguments presented by Defendants in their Reply that the Court should strike. II. THE COURT SHOULD DECLINE TO CONSIDER DEFENDANTS IMPROPER AND IRRELEVANT INTRODUCTION OF EVIDENCE IN THEIR REPLY THAT CONCERNS FUTURE PLANS OR CONDITIONS OR OTHERWISE VIOLATES THE RULES OF EVIDENCE A. EVIDENCE ABOUT ALLEGED FUTURE PLANS OR CONDITIONS SHOULD BE EXCLUDED AS IRRELEVANT As Plaintiffs noted in their Opposition to Defendants Motion to Terminate Under

11 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 the PLRA and to Vacate Under Rule 0(b)() (Docket No. 0 at ) (hereinafter Pls. Opp n or Pls Opp. Br. ), relevant evidence for a motion to terminate is evidence that exists as of the time of the termination motion. Gilmore v. California, F.d, 00 (th Cir. 00) (record relevant to evaluating current and ongoing conditions is record reflecting conditions as of the time termination is sought ); Lancaster, 0 U.S. Dist. LEXIS at *- & * (relevant record for Court s inquiry into current conditions is record reflecting conditions as of the moment the termination motion was made ). Evidence about Defendants purported future plans or events is not proper or relevant to a termination motion because the legal standard asks whether prospective relief remains necessary to correct a current and ongoing violation of the Federal right. U.S.C. (b)() (emphasis added). For example, in addition to the future plans for new beds and record systems relied upon by Defendants in their original Motion to Terminate, Defendants claim in their reply that they have remedied their inadequate suicide prevention practices. Defendants cite to a mentor program for suicide risk evaluation that will allegedly be completed by April 0, (Defs. Reply at :-), an outstanding request for bids for an electronic welfare check tracking system, and a not-yet-released memorandum providing for interim measures until this tracking system is contracted, funded, designed, and implemented. (Defs. Reply at :-.) One of the declarants Defendants rely upon for evidence that they currently provide adequate care to inmate-patients remarkably asserts, [a]s of March,, most inmates are now being scheduled for [more groups], although this declaration is dated March,. (Reply Declaration of Shama Chaiken, Docket No. ( Chaiken Decl. ), ::; see Defs. Reply at :-0.) Another declarant claims that inmate-patients delayed on a waitlist for acute psychiatric hospitalization are being placed in a timely manner based on the supposed availability of a new unit at CMF that had not accepted a single patient as of the time she wrote the declaration. (Reply Declaration of Ellen Bachman, Docket No. ( Bachman Decl. ), - (future reductions in waitlist based on patient placements discussed in future tense).)

12 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 Assertions that current violations will no longer be ongoing at some point in the future because of actions allegedly planned but not yet taken by Defendants do not satisfy Defendants burden to demonstrate that federal violations are not current and ongoing. See Clark, F. Supp. d at (In PLRA termination case, Court found that [s]ince the instrument is not finished the Court cannot find that it will do what it is intended to do ). As detailed below, Plaintiffs have identified at least twenty assertions in Defendants eveof-hearing declarations about conditions that will purportedly result from future, planned, or hoped-for actions. B. EVIDENCE THAT VIOLATES OTHER BASIC RULES OF EVIDENCE SHOULD BE EXCLUDED The Court should also decline to consider Defendants Reply declarations insofar as they are riddled with unsupported claims, speculative assertions, inadmissible hearsay, and gross mischaracterizations. As set forth below, nearly every declarant offers opinions for which no foundation or personal knowledge is provided. The non-attorney declarants including an assortment of prison wardens, institutional staff members, and others repeatedly assert without evidence or citation that the mental health care provided at CDCR institutions is constitutional. Doctors offer opinions as to the adequacy of mental health care provided to patients they never claim to have met and whose medical records they do not claim to have reviewed. Declarants opine widely about changes they intend to make, buildings they hope will open, and memoranda they want to issue. The end result is a collection of unreliable declarations of little to no value to the Court. Plaintiffs objections (though lengthy) are clear and uncomplicated. First, Defendants Reply declarations time and again violate the dictates of Federal Rule of Evidence 0, which permits a lay witness to testify only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter (emphasis added). Defendants declarations demonstrate no regard for this Rule, as individuals assert sweeping conclusions about quality of care, staffing levels, and suicide prevention measures offered without a scintilla of foundation in personal knowledge. No

13 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 fewer than of the declarations include assertions that are inadmissible on account of being unsupported by personal knowledge. One clear example of the utter lack of foundation underpinning the declarants assertions is evidenced by the Reply Declaration of Charles DaSilva (Docket No. ). Mr. DaSilva, the Executive Director of the Salinas Valley Psychiatric Program (SVPP), claims that SVPP provides a robust and multifaceted treatment program which seeks to address the totality of patients mental health needs. (Id. at.) Mr. DaSilva asserts that there is presently no shortage of clinical staff at SVPP, and that any recent staff reductions were quickly remedied by DSH s ongoing focus on recruitment and hiring. (Id. at,.) In support of that assertion, he cites vague predictions that a psychiatrist who left SVPP may return in the future and claims to have identified doctors willing to work at SVPP. (Id. at.) Despite opining broadly on staffing, hiring, and credentialing, Mr. DaSilva cites no data of any kind and provides no evidentiary support for his sunny assessments. Meanwhile, on the same day that Defendants filed their Reply and supporting declarations, Dr. Joel Badeaux, a psychiatrist at SVPP, was so grave[ly] concern[ed] about the safety conditions at that institution that he sent a letter to Attorney General Eric Holder (copied to Governor Brown) to request an investigation of conditions at SVPP. (A. Fischer Decl. Ex. (Letter of Joel Badeaux, M.D.), at.) Chief among his concerns was a critical level of understaffing leading to perilous conditions. (Id.) Dr. Badeaux stated that at the same time as SVPP has reported to the media that there is no anticipated staffing crisis, all nine psychiatrists working at this program just two months ago have either quit, gone on extended leave, or will be transferring to new positions by the end of April. (Id.) Dr. Badeaux requested urgent assistance [to] prevent further needless injury and death. (Id. at.) The concerns of Dr. Badeaux, on subjects addressed only in the most flimsy manner by Mr. DaSilva, put a fine point on the unreliability of these declarations. If Mr. DaSilva had felt compelled to cite evidence or establish a foundation for his conclusions, he might have found it more challenging to write such a one-sided,

14 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 self-serving account of the circumstances at SVPP. The declarants also repeatedly proffer expert testimony despite not being qualified as experts in any manner. These statements contravene the requirements of Fed. R. Evid. 0, which provides that non-expert testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness s perception, (b) helpful to determining a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge. Declarants offer opinions about complex issues relating, for example, to the adequacy of staffing levels for mental health care, the appropriateness of holding cells for suicidal inmates, and the relative necessity of confidential space for clinical contacts. Such statements are also in direct violation of Fed. R. Evid. 0, which sets forth the specific requirements as to who may provide expert testimony. At least of the declarations involve conclusions and assessments that are properly the province of expert witnesses, not lay declarants. Similarly, Plaintiffs object to the declarants repeated assertions of broad legal conclusions, which are appropriately reserved for the Court, not mental health care providers, correctional officials, and assorted others. These statements, including multiple statements that the mental health care being provided to Coleman class members is constitutional, constitute improper opinions on conclusions of law rather than facts and evidence to be considered in the Court s determination of constitutionality. See Hangarter v. Provident Life & Accident Ins. Co., F.d, 0- (th Cir. 0) ( No witness expert or non-expert should opine on the ultimate legal conclusion, which is province of the court. ). No fewer than ten of the declarations contain bare assertions of legal conclusions. Many declarants base their declarations on mere hearsay, such as assertions about purported statements made by patients, correctional officers, and doctors. The declarants offer these statements made by third parties for the truth of the matter asserted, and no hearsay exceptions apply. See Fed. R. Evid. 0, 0. No fewer than eight declarations rely on hearsay statements that render them inadmissible.

15 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 Moreover, many declarations make assertions that are inadmissible on account of their total irrelevance. As noted above, such statements include speculations about future actions, projects, and reforms that have no bearing on the Court s inquiry into current and ongoing conditions. Other declarations include statements that are irrelevant because they simply do not respond to any matter at issue in the case. Such irrelevant statements are present in at least of the declarations. As noted above, Plaintiffs also object to the declarants introduction of new evidence after the close of discovery. These include sweeping assertions of major reforms and changes about which Plaintiffs are unable to depose or cross-examine the declarants. In some cases, the new evidence has been generated by Defendants since the close of discovery. A case in point is the Reply Declaration of Charles Scott (Docket No. ) ( Scott Decl. ), which Dr. Scott uses as an opportunity to improperly cure the major deficiencies in his expert report. A party that without substantial justification fails to disclose information required by Rule (a) shall not, unless such failure is harmless, be permitted to use as evidence at a trial any information not so disclosed. Fed. R. Civ. P. (c)(). Dr. Scott, who signed his name to a joint expert report containing no methodological disclosures as required by Rule, now attempts to present a description of his methodology for the first time on Reply. (Scott Decl. -.) The numbers he provides regarding records reviewed and meetings observed still do not clearly set forth a scientific method by which Defendants experts applied their expertise to the facts of this case. To the extent that Dr. Scott s purported methodology was not previously disclosed, it should be excluded pursuant to Rule (c)(). And to the extent that it is no methodology at all, it is irrelevant. In Dr. Scott s case, none of the information provided in Paragraphs - of his Reply Declaration (regarding specific numbers of cases, files, and events forming the basis for his opinions) was disclosed in any way with the Joint Report. (See Report of Dvoskin, Moore, & Scott, Docket. No. -.) Plaintiffs remain prejudiced by this non-disclosure

16 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 of the specific bases for Dr. Scott s opinions, even after attempting diligent discovery into the foundations of his opinion. Dr. Scott was unable in his deposition to state the precise number of cases he reviewed, which cases may or may not have made it into his partial database of case reviews, nor any method of tabulating the results of his case reviews other than stating that the results were in my head. (Scott Dep. at :-:; see also id. at :-0:, :-:.) The partial information Plaintiffs eventually received about the cases that Dr. Scott reviewed came too late to allow Plaintiffs experts an opportunity to review the same patients cases, as discovery was closed by the time Plaintiffs could extract this partial information from Dr. Scott. (See Docket Nos.,,.) In addition to lacking substantive reliability, some of the declarations fail the elementary standards of admissibility. For example, four of Defendants declarations, filed on March,, lack a complete jurat including the required date, and therefore must be stricken. An undated Declaration is not admissible. See U.S.C. (unsworn declarations must be subscribed, as true under penalty of perjury, and dated ); Rosales v. El Rancho Farms, No. 0-cv-000, U.S. Dist. LEXIS at *- (E.D. Cal. Dec., ) (granting request to strike undated declarations). The declarations of Diana Toche (Docket No. ), Daniel Paramo (Docket No. ), H. Gabeler (Docket No. ), and J. Card (Docket No. ) should be stricken as a preliminary matter, irrespective of their major substantive deficiencies. By contrast, Plaintiffs expert reports are completely transparent as to the patients interviewed, files reviewed, and the conclusions drawn. And, Defendants did not have to wait for Plaintiffs expert reports, because Defendants had contemporaneous notice of everything Plaintiffs experts did including each location and patient case reviewed. Defendants were able to access this information because Plaintiffs, unlike Defendants, complied with this Court s orders regarding notice of expert tours. As to the Defendants expert reports both those filed in conjunction with Defendants Motion to Terminate and the response to Dr. Patterson s suicide report submitted on Reply by Dr. Dvoskin (Docket No. -) these reports have never been sworn by the experts. Defendants attorneys attach the reports to their own declarations, but counsel are not competent to testify about the matters therein. Harris v. Extendicare Homes, F. Supp. d 0, 0 (W.D. Wash. ). [C]ourts in this circuit have routinely held that (footnote continued)

17 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 No fewer than eight declarations violate Federal Rule of Evidence 00, the Best Evidence Rule, which provides that [a]n original writing is required in order to prove its content unless these rules or a federal statute provides otherwise. The declarants repeatedly offer testimony as to the contents of written writings without introducing such records into evidence. As these documents, which include CDCR treatment records, are clearly within Defendants possession and control, there is no excuse for introducing their contents through testimony rather than the documents themselves. Defendants lengthy Reply Declarations, filed days before the hearing, represent nothing more than a desperate attempt to shore up their case, but ultimately contain flimsy, unreliable, improper evidence that the Court should strike. III. EVIDENTIARY OBJECTIONS TO EVIDENCE A. DECLARATION OF TIM BELAVICH, DOCKET NO. ( BELAVICH DECL. ). Overall Objection to Belavich Decl. and attached Exhibits New Evidence Presented for First Time on Reply; Lack of Relevance [Fed. R. Evid. 0]: Defendants are not permitted to present new evidence concerning events that occurred at prisons or in CDCR Headquarters for the first time on reply, well after the discovery cut-off. To allow such evidence would prejudice Plaintiffs, whose tours are completed and who cannot conduct additional tours or depositions to test the new evidence. The Belavich Declaration addresses Suicide Prevention efforts at CDCR, Welfare Check policies, ASU Psych and Return policies, and other developments dated within days of their filing of their Reply, and attaches several exhibits that have never been provided to Plaintiffs before the Reply. These policies did not exist at the time of unsworn expert reports are inadmissible. Id. (collecting cases). That is because an unsworn expert report is hearsay, upon which courts may not rely. See Hunt v. City of Portland, No. -00, U.S. App. LEXIS 0, WL at * (th Cir. ) ( With respect to the expert s written report, we conclude that the report is hearsay to which no hearsay exception applies ); see also Pack v. Damon Corp., F.d 0, (th Cir. 0) ( the [expert] Report is unsworn and thus is hearsay ). 0

18 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 Defendants filing of the Motion to Terminate, and it is thus improper that they rely on them in support of their position.. Belavich Decl., & Exhibit A Statewide Mental Health Program Accomplishments 0- Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: Dr. Belavich does not provide any context for the chart contained in Exhibit A, including how it was prepared or whether he verified (or even reviewed) the accuracy of the data it contains. He explicitly states that he is not providing a description as to what many of these accomplishments entail, or how they constitute evidence that Defendants mental health care system provides constitutionally-required care.. Belavich Decl., & Exhibit C Audit Results for and re: Sustainable Process Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: Dr. Belavich does not provide any context for the chart contained as Exhibit C, including how it was prepared or whether he verified (or even reviewed) the accuracy of the data it contains. He provides no explanation as to how the chart which purports to document the sufficiency of documentation in referral packages (though it is unclear what that means) supports his In this hard-to-decipher chart, Defendants take credit for plans that have never been fully implemented, including the Mental Health Bed Plan approved and filed and the Mental Health Staffing Plan approved and filed in 0. Defendants chart also states that they Established Proctor/Mentor Program at numerous institutions in. As Exhibits I & J to the Belavich Declaration make clear, the systemwide memorandum about the implementation of this program did not get disseminated until February at the earliest. Finally, and disturbingly, according to Defendants chart, Statewide Mental Health Program Accomplishment for is that Defendants Filed motion to terminate Coleman lawsuit, an accomplishment that is hardly evidence of whether Defendants system is providing constitutionally required care.

19 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 statement that the data evidence that CDCR staff have the skills to recognize and inmate s need for the transfer to a higher level of care, in fact are identifying the additional needs, and are properly documenting those needs to demonstrate the inmate meets the criteria for transfer. In fact, the data show that performance has declined at some institutions (CCWF, KVSP, SAC), and that only four institutions are producing sufficient and appropriate documentation more than % of the time, with many institutions performance much lower than that.. Belavich Decl., & Exhibits D, E, & F There is a great deal of evidence which shows successful interventions before an attempted suicide occurs. In order to get a full picture of the work done to prevent suicides, the court and experts should take into account the number of inmates referred to DSH for care and to the number of inmates sent to a mental health crisis bed (MHCB) for care. Data reflects that CDCR made DSH referrals for ICF beds in, 0 in, and for the first two months of. See Exhibit D. Similar data also shows that CDCR made DSH referrals or acute level care in, in, and in the first two months of. See Exhibit E. Moreover, additional information shows that 0 requests for inter-institutional MHCB placements were made in and in. This is not reflective of the thousands of annual intra-institutional MHCB placements. Data reveals in there were 0, referrals to intra-institutional MHCB, yielded 000 similar referrals and there have been such referrals through March,. See Exhibit F. Best Evidence Rule [Fed. R. Evid. 00]: Dr. Belavich does not state the source of this summary data or how it was generated. He provides no data at all in support of his statement that additional information shows that 0 requests for inter-institutional MHCB placements were made in and in.

20 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 Objection Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: Dr. Belavich does not provide any foundation for his statements and the data therein. He also ignores in his purported full picture that referrals to higher levels of care mean nothing to the hundreds (if not thousands) of inmate-patients who never get placed following a higherlevel-of-care referral or do so only after significant delays. (See, e.g., Pls. Opp. Br. at :-: (less than half of MHCB referrals to HCPOP result in actual MHCB placement, including more than inmate-patients referred for MHCB placement in January alone that were never placed in an MHCB).). Belavich Decl., [Defendants] have agreed with many of [Lindsay Hayes ] recommendations or observations. Lack of Foundation [Fed. R. Evid. 0]: Dr. Belavich presents no foundation for this assertion. In fact, Paragraphs - confirm that this statement is false. Paragraph states that Mr. Hayes recommended the use of suicide-resistant beds in MHCBs and that Defendants have implemented this recommendation. This is true, but Defendants certainly did not agree with this recommendation to improve suicide prevention in CDCR. To the contrary, Defendants vigorously opposed the recommendation, which was only implemented pursuant to court order. (See Docket No. 0.) Paragraph states that Mr. Hayes also recommended expanding the use of the Mental Health Tracking System (MHTS) to include data collection on all inmates who have attempted suicide, engaged in self-injurious behavior, or otherwise been placed on suicide observation rather than having data available only for those inmates who are participants in the Mental Health Services Delivery System (MHSDS). Dr. Belavich goes on to explain that while Defendants do some tracking of non-mhsds prisoners, they have not implemented Mr. Hayes recommendation.

21 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 In Paragraphs -, Dr. Belavich attempts to explain away additional recommendations and justify why none of them have been implemented. (Belavich Decl. (Hayes recommended approximately twelve suicide prevention-related revisions to the Program Guide, Defendants completed none of those revisions but did issue a memorandum on one of twelve issues); id. (several Hayes recommendations regarding suicide prevention training rejected or not yet implemented, save one training first delivered March,, more than two and a half years after Hayes recommendation was made, and only three days before Reply brief was filed); id. (declining to implement recommendations related to OHUs); id. (rejecting recommendation regarding threshold for placement on suicide observation and precautions because it was not useful ). What is clear is that Defendants did not agree to implement any of the Hayes recommendations that Dr. Belavich describes, save the one that was implemented only after heavily contested litigation and a court order.. Belavich Decl.,, :- & Exhibit K More recently, in recognition of the challenges associated with the return of inmates from DSH to ASU and the risk for self harm which may arise in that circumstance, CDCR has issued a new Psych and Return policy. This policy is a dual signature memorandum by the Director of Adult Institutions and myself, which reflects CDCR's intent to move inmates to their proper level of care and to expedite processing rather than having inmates returned to administrative segregation directly from DSH. Kathleen Allison, Deputy Director of the Division of Adult Institutions, describes this memorandum more fully in her declaration. A copy of the memorandum is attached as Exhibit K. New Evidence Presented for First Time on Reply; Lack of Relevance [Fed. R. Evid. 0] Exhibit K, a joint memo signed by the Director of DAI and the Director of Health Care Services, dated March,, is new evidence provided to Plaintiffs for the first time on Reply. This new policy memo about time frames for classification, and psych and return policies for CDCR prisoners treated in DSH facilities lacks relevance to the

22 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 present inquiry into current and ongoing not future and speculative conditions. The memorandum has never been shared with Plaintiffs, and it is deficient given its failure to effectively address the problem, as outlined in Plaintiffs Opposition brief. (Docket No. at -.). Belavich Decl.,, :-: & Exhibit L CDCR has also undertaken further efforts to clarify with the staff the expectations regarding ASU welfare checks. There has been confusion in the field regarding implementation of the checks. A draft memorandum titled, Revised Administrative Segregation Unit Welfare Check Procedure and Implementation of Security Inspections in Specialized Housing, has been signed and is ready to be implemented, which provides clarification that at least three checks per hours must occur at staggered, unpredictable intervals not to exceed 0 minutes, rather than simply providing the checks every 0 minutes. This memorandum further instructs the staff that welfare checks in administrative segregation should continue beyond days when clinically appropriate. This memorandum has been signed by both me and the Director of Adult Institutions. It has not yet been released to the field pending union notification. However, we are hopeful that this can be accomplished expeditiously so that it may be disseminated to the field. A copy of the draft memorandum is attached as Exhibit L. New Evidence Presented for First Time on Reply; Lack of Relevance [Fed. R. Evid. 0]: Contrary to Dr. Belavich s Reply Declaration, Exhibit L is not a joint memorandum signed by the Director of DAI and the Director of Health Care Services, dated March,. Exhibit L is an October, 0 memorandum signed by a former director of DAI, regarding 0 minute welfare checks. Plaintiffs assume that Dr. Belavich meant to reference Exhibit B to the Declaration of Kathleen Allison (Docket No. ), which is a memorandum dated March, regarding planned future changes to the manner in which Defendants conduct welfare checks. Plaintiffs objections to that exhibit are discussed infra. Dr. Belavich s hopefulness that this referenced plan to implement a

23 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 new 0 minute welfare check program may be disseminated to the field lacks relevance to the present inquiry into current and ongoing not future and speculative conditions.. Belavich Decl., & Exhibit M [T]o address concerns raised about the potential under-identification of EOP inmates in the condemned population,.% of all condemned inmates are classified as EOP, compared to.0% of all CDCR inmates. Additionally, the percentage of EOPcondemned inmates far exceeds the percentage of EOP inmates in administrative segregation and in the Psychiatric Services Unit statewide combined and multiplied by a factor of five. [noting that 0.% of all administrative segregation inmates and 0.% of all Psychiatric Services Unit inmates receive EOP-level care.] Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: In what may be one of the most disturbing declarant statements of all, Dr. Belavich, the Acting Statewide Mental Health Deputy Director, demonstrates a shocking lack of knowledge about the mental health programs in his system. His sworn statement that 0.% of all administrative segregation inmates and 0.% of all Psychiatric Services Unit inmates receive EOP-level care is dead wrong. In fact, Defendants data show that approximately.% of ASU prisoners and nearly 00% of PSU prisoners are at the EOP level of care. (See A. Fischer Decl. Ex..) The PSU is designed for EOPs (see Chapter of the Coleman Program Guide), so the fact that Dr. Belavich testifies that just.% of PSU inmates receive EOP level of care is troubling to say the least. B. DECLARATION OF JACQUELINE MOORE, DOCKET NO. ( MOORE DECL. ). Moore Decl.,, :- Plaintiffs and their expert, Dr. Kaufman, correctly note that I recommended that nurses distributing medication to mental health inmate-patients in California s prisons receive training about the potential side effects of psychotropic medication. I made this

24 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 recommendation not because I found the nursing care inadequate, but because training would improve the already good nursing care provided in California s prisons. New Evidence Presented for First Time on Reply: Defendants are not permitted to present new evidence, such as this attempt by Dr. Moore to rebut her own testimony given under oath during the period of fact discovery in this matter. At her deposition, Dr. Moore stated that she would have phrased [her own expert report] differently on the issue of Nursing Medication Management, such that she would have made a recommendation that nursing education emphasize the side effects of the medication and that they have handouts or signs available where they dispense the medications... She testified that, outside of CDCR, it was a common practice that nurses know the side effects of the medication that they re giving because very often you [i.e., a nurse] are the one that might observe lithium toxicity in an inmate and agreed that it s important to be aware of the side effects of the psych medications in order to ensure the safety and wellbeing of those patients. Moore found this to be a problem at all of [the institutions she evaluated] except San Quentin. (Moore Dep. at 0:-:.) Defendants attempt to inject further testimony not subject to cross-examination at this late date and after Moore had the opportunity to explain herself fully in her written report and during her deposition, should not be permitted.. Moore Decl.,, :-: In their Opposition, I read that Plaintiffs claim that our expert group was asked not to opine on population density. While this is literally true, if I saw that crowding was precluding the State s ability to provide adequate mental health care, I would have expressed that opinion. I did not observe this to be the case during my evaluation of CDCR s mental health system. New Evidence Presented for First Time on Reply: Once again, Defendants should not be permitted to introduce new evidence at this late date in an effort to rebut

25 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 their own expert s prior sworn testimony given during the Court-ordered discovery period. Moore quite specifically testified that she and the other Defendants experts had specific issues that we were looking at, and those issues consumed four of us for the time we were on site. We didn t have time to become involved in every issue that CDCR has [i]ncluding overcrowding. (Moore Dep. at :-:.) Defendants attempt to inject further testimony not subject to cross-examination at this last date and after Moore had the opportunity to explain herself fully in her written report and during her deposition, should not be permitted. C. DECLARATION OF DIANA TOCHE, DOCKET NO. ( TOCHE DECL. ). Toche Decl.,, :- Currently, the mental health program has. positions filled. 0.0 of these filled positions are staffed by clinical social workers, psychologists, psychiatrists and recreational therapists that are directly responsible for delivering mental health care to a mentally ill inmate population of, inmates at a ratio of one clinician per inmates. In addition, the mental health program employs the equivalent of 0. mental health clinicians through registry. Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: Dr. Toche provides no evidentiary basis for any of the numbers cited in this paragraph.. Toche Decl.,, :-: and, :- Paragraph sets forth an argument about the nature of the 0 staffing plan and the purposes for which that plan was designed. These assertions are presented for the first time in this Declaration on Reply. Paragraph similarly sets forth an argument about the adequacy of the staffing plan, and asserts that the plan was designed to ensure that the Mental Health Program had sufficiently robust staffing resources so that institutions could always meet the basic mental health care needs of Coleman class members even if all funded positions are not filled.

26 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 New Evidence Presented for First Time on Reply: Defendants are not permitted to present new evidence, such as this detailed discussion of the staffing plan, for the first time on reply and well after the discovery cut-off. To allow such evidence would prejudice Plaintiffs, who cannot conduct additional depositions to test the new evidence. Objection Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]: When asked at deposition about the 0 staffing plan, Dr. Toche testified as follows: Q. Are you familiar with the development of that staffing plan? A. I know that they had a group work on it. That s how I m familiar with it. Q. Is that what you know? A. Yes. Q. Is that everything that you know about the development of that? A. Yes. Pretty much. (Toche Dep. at 0:-:.) Dr. Toche was the Deputy Director for Dental Services for CDCR during the development of the staffing plan. Dr. Toche cannot now plausibly declare, as she does in paragraphs and, to a detailed understanding of the purposes for which the staffing plan was designed, when she expressly disclaimed any specific knowledge about its development during her deposition.. Toche Decl.,, :- The CDCR Mental Health Program staffs institutions by applying clinician-topatient ratios designed in the 0 staffing plan to population projections that forecast the number of inmates who will require programming by their levels of care and custody (for example, General Population Enhanced Outpatient Care). Next, headquarters staff calculate how the inmate population for each level of care or programming provided is distributed among the institutions to ensure that each institution is allocated an array of mental health staff that is consistent with the population it serves. Minor manual

27 Case :0-cv-00-LKK-JFM Document Filed 0// Page of [-] 0 adjustments are then made to appropriately manage resources. New Evidence Presented for First Time on Reply. Defendants are not permitted to present new evidence, such as this detailed discussion of the staffing allocation system, for the first time on reply and well after the discovery cut-off. To allow such evidence would prejudice Plaintiffs, who cannot conduct additional depositions to test the new evidence.. Toche Decl.,, :- On February,, Acting Deputy Director of the Mental Health Program Tim Belavich issued a similar memorandum to the Chief Executive Officers and Chiefs of Mental Health of each institution directing them to fill as many vacant allocated positions as possible. New Evidence Presented for First Time on Reply: Defendants are not permitted to present new evidence, such as testimony regarding this purported memorandum, for the first time on reply and well after the discovery cut-off. To allow such evidence would prejudice Plaintiffs, who cannot conduct additional depositions to test the new evidence. The referenced memorandum was issued four days following Dr. Belavich s deposition. Objection Lack of Personal Knowledge/Foundation [Fed. R. Evid. 0]/Best Evidence Rule [Fed. R. Evid. 00]: This purported memorandum is not attached as an exhibit to Dr. Toche s declaration and not otherwise referenced as existing within the record before the Court. Dr. Toche s assertions as to its content therefore lack foundation.. Toche Decl.,, :-0 Recently, sixty psychiatrists have committed to join the Mental Health Program, thirty of which will provide telemedicine appointments for inmates housed in more remote prisons.